Government of Canada amends medical cannabis regulations, fails patients again

As many of you know the MMAR have had a void since early March. There has been no limit on the number of designated production licenses that can be aggregated at any one facility. That restriction (section 54.1) had been 3 (the 3-max restriction). In Beren we were able to convince the Court to declare it invalid and the government was given a one year suspension of that declaration - until February 9, 2010.

 

Just before that deadline the Crown contacted me seeking additional time. Mr. Beren instructed me to refuse, the Crown applied for an extension and I applied to have M. Justice Koenigsberg re-open her judgment, consider the government's actions in the prior year including their enactment of a 2:1 DPL:ATP ratio as an "interim" measure and subsequent inaction on a full review (which I called nearly contemptuous of the decisions in Sfetkopolous and Beren) and ultimately strike the 3-max and new 2:1 ratios. I also sought to have her take superintending control over the program until the government brought it into compliance with the Charter.

 

She declined to grant the relief I sought, ruling that she was functus (without jurisdiction to re-open a declared judgment). She gave the government an extension of the stay and told it that it could have as much time as it reasonably needed. But, she ordered, the government had to come back in three weeks to provide a detailed report on how it planned to review the MMAR to ensure compliance with Sfetkopolous and her decision in Beren. I thought that was great and immediately offered to consult with the government to come up with that report and to provide my client's views on how the government could make the MMAR work - I said I'd fly to Ottawa at a moment's notice if they wanted.

 

The government didn't take me up on that offer. Instead it waited a couple weeks and advised the Court that it was withdrawing its request for an extension of the stay. It cited potential Cabinet privilege in its refusal to disclose its plans for a review. And so on that day the 3-max restriction became invalid. Now there was theoretically no limit on the number of licenses that could go in any one facility.

 

The government has now enacted amendments. (http://www.gazette.gc.ca/rp-pr/p2/2010/2010-03-31/html/sor-dors63-eng.html) The overall effect of one of those amendments is to raise the 3-max restriction to 4. In other words, another baby step much like the move from a 1:1 ratio to a 2:1 ratio. I'm actually surprised. I knew it would be a baby step but I thought the government would go to 5 maximum just to avoid looking so obviously recalcitrant.

 

Another amendment was made to clarify that a holder of a PPL can also hold one DPL. I thought the way this was framed in the RIAS accompanying the amendments was interesting: to allow a DPL to also become a PPL and not the reverse.

 

The government was given the ability to revoke any licenses over the four allowed at a facility. You are given the right to a hearing before the revocation takes place though it is unclear what purpose the hearing will serve as the Minister has no discretion to refuse to revoke...the revocation language is "shall revoke" not "may" revoke. This amendment's purpose was presumably to cover off those people who applied for multiple licenses at one location during the period of invalidity. If anyone knows of someone who gets a revocation letter and wants to challenge it please don't hesitate to provide them with my contact information.

 

Finally the MMAR were amended to give the government the right to revoke licenses of people who are licensed but not producing in conformity with their licensed location.

 

In reading the RIAS I was struck by the absence of language indicating a detailed review is ongoing. That review was promised in the 2009 amendments. Also, and unlike when the 2:1 ratio was implemented in 2009, the increase to 4-max was not deemed to be an "interim" measure. Obviously the RIAS also contained the usual rhetoric about dangers and diversion. And it appears that, again, the government only consulted with law enforcement and fire officials in reaching its regulatory conclusions.

 

There was one odd thing about the amendments that I will need some time to process. I thought it interesting how the government chose to amend to the 3-max. Instead of enacting a new section 54.1 in the general provisions section of the MMAR, the government added the 4-max restriction to the Personal Production License section of the MMAR. That section (32(d)) is then incorporated into the DPL section of the regulations by virtue of 41(c). It makes for a confusing regulatory structure.

 

Kirk Tousaw

www.whyprohibition.ca